OF CRIMINAL LEGISLATION AND RELATED ACTION
1) Elements of the offence of active bribery
i) Bribery is understood as the promise or giving of any undue payment or other advantages, whether directly or through intermediaries to a public official, for himself or for a third party, to influence the official to act or refrain from acting in the performance of his or her official duties in order to obtain or retain business.
ii) Foreign public official means any person holding a legislative, administrative or judicial office of a foreign country or in an international organisation, whether appointed or elected or, any person exercising a public function or task in a foreign country.
iii) The offeror is any person, on his own behalf or on the behalf of any other natural person or legal entity.
2) Ancillary elements or offences
The general criminal law concepts of attempt, complicity and / or conspiracy of the law of the prosecuting state are recognised as applicable to the offence of bribery of a foreign public official.
3) Excuses and defences
Bribery of foreign public officials in order to obtain or retain business is an offence irrespective of the value or the outcome of the bribe, of perceptions of local custom or of the tolerance of bribery by local authorities.
4) Jurisdiction
Jurisdiction over the offence of bribery of foreign public officials should in any case be established when the offence is committed in whole or in part in the prosecuting State's territory. The territorial basis for jurisdiction should be interpreted broadly so that an extensive physical connection to the bribery act is not required.
States which prosecute their nationals for offences committed abroad should do so in respect of the bribery of foreign public officials according to the same principles.
States which do not prosecute on the basis of the nationality principle should be prepared to extradite their nationals in respect of the bribery of foreign public officials.
All countries should review whether their current basis for jurisdiction is effective in the fight against bribery of foreign public officials and, if not, should take appropriate remedial steps.
5) Sanctions
The offence of bribery of foreign public officials should be sanctioned / punishable by effective, proportionate and dissuasive criminal penalties, sufficient to secure effective mutual legal assistance and extradition, comparable to those applicable to the bribers in cases of corruption of domestic public officials.
Monetary or other civil, administrative or criminal penalties on any legal person involved, should be provided, taking into account the amounts of the bribe and of the profits derived from the transaction obtained through the bribe.
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Forfeiture or confiscation of instrumentalities and of the bribe benefits and the profits derived from the transactions obtained through the bribe should be provided, or comparable fines or damages imposed.
6) Enforcement
In view of the seriousness of the offence of bribery of foreign public officials, public prosecutors should exercise their discretion independently, based on professional motives. They should not be influenced by considerations of national economic interest, fostering good political relations or the identity of the victim.
Complaints of victims should be seriously investigated by the competent authorities.
The statute of limitations should allow adequate time to address this complex offence.
National governments should provide adequate resources to prosecuting authorities so as to permit effective prosecution of bribery of foreign public officials.
7) Connected provisions (criminal and non-criminal)
- Accounting, recordkeeping and disclosure requirements
In order to combat bribery of foreign public officials effectively, states should also adequately sanction accounting omissions, falsifications and fraud.
- Money laundering
The bribery of foreign public officials should be made a predicate offence for purposes of money laundering legislation where bribery of a domestic public official is a money laundering predicate offence, without regard to the place where the bribery occurs.
8) International co-operation
Effective mutual legal assistance is critical to be able to investigate and obtain evidence in order to prosecute cases of bribery of foreign public officials.
Adoption of laws criminalising the bribery of foreign public officials would remove obstacles to mutual legal assistance created by dual criminality requirements.
Countries should tailor their laws on mutual legal assistance to permit co-operation with countries investigating cases of bribery of foreign public officials even including third countries (country of the offeror; country where the act occurred) and countries applying different types of criminalisation legislation to reach such cases.
Means should be explored and undertaken to improve the efficiency of mutual legal assistance.
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